An Oklahoma tribe's out-of-state casino has been deemed illegal by
the National Indian Gaming Commission.

A 24-page opinion issued through the agency's top lawyer rejected
the Wyandotte Nation's right to game in downtown
Kansas City, Kansas. The tribe has been operating a Class II facility
on on a sliver of trust land since August of last year, citing historical ties
to the area.

But NIGC's acting general counsel, Penny Coleman, said the land was
taken into trust too late and for the wrong reasons. While acknowledging
that the tribe exercises jurisdiction over the Shriner Tract --
a key factor in the analysis -- she invoked the Indian
Gaming Regulatory Act's ban on gaming on lands acquired after 1988.

The land, Coleman wrote, does not fall within the tribe's "last
reservation," it was not acquired as the result of a land claim
and it was not restored when the tribe regained federal recognition
in 1978. "Therefore, the tribe may not game on the Shriner Tract
pursuant to IGRA," she said in the March 24 opinion.
[PDF: 1.3 MB]

Reached at his office in Wyandotte, Oklahoma, Chief Leaford Bearskin said
NIGC hadn't informed him of its decision, which was accompanied
by a letter addressed to him.
"I have no comment until I get notified," he said.

Kansas attorney general Phill Kline, though, took it as a victory in
his quest to shut the facility down. "We now call upon the Wyandotte
Nation to immediately halt gaming activity on the Shriner Tract
and to remove all gaming devices to comply with the decision of
the NIGC," he said.

Kline's urgency is natural because the state and its four
federally-recognized tribes have fought the Wyandotte
Nation's gaming plans for several years. The tribes all operate casinos pursuant
to compacts with the state.

But Coleman's long-awaited decision
has ripples elsewhere because state officials and politicians
nationwide are seeking guidance on whether tribes
can operate casinos on lands hundreds of miles away from their
current reservations or, in some cases, in other states.

Just as the ruling was finalized, a Bureau of Indian Affairs
official raised the issue at a Senate hearing on Wednesday. George Skibine,
the acting deputy assistant secretary for policy and economic development,
said his agency has found nothing in IGRA to limit gaming to existing
tribal lands.

Skibine told the Senate Indian Affairs Committee that
"it would definitely be an economic benefit to tribes" to
acquire off-reservation or out-of-state lands pursuant to
a section of IGRA, known as section 2719, that sets out the
requirements for these types of acquisitions. In an interview
after the hearing, he stressed that there was "no legislative history"
on this issue.

But in the decision, Coleman countered that, "This section of
IGRA limits, not expands, the right to game. It is clear that Congress
intended to allow
some gaming to occur on lands acquired after enactment of IGRA
under this provision, but specifically disallowed gaming on newly
acquired lands far from the current prior reservation."

Affie Ellis, an NIGC spokesperson, wasn't ready to consider the
two statements a conflict. "We want to be consistent with what's
in section 2719," she said. The Shriner Tract, she noted,
"was acquired into trust in 1996 and did not meet any of the exceptions"
laid out in the section.

In the Wyandotte Nation's case, that meant first evaluating whether the tribe has
jurisdiction over the parcel. Citing a number of governmental
actions, including an agreement with the local government,
NIGC concluded the tribe indeed exercises authority.

Second, Coleman considered whether the land was in the tribe's "last recognized
reservation within the state within which the tribe is presently located."
Since the tribe is "presently located" in Oklahoma, where its
headquarters are based, she determined that this exception was not met.

Next, NIGC looked at whether the tribe could satisfy the land
claim exception. The tribe did purchase the tract with settlement
funds but Coleman said the funds were awarded by the Indian
Claims Commission, whose purpose was "to ascertain money damages" --
not award land.

Finally, Coleman examined whether the land qualifies as "restored"
since the tribe, after being terminated in 1956, regained federal
recognition in 1978. Section 2719 provides an exception for
restored tribes.

But the tribe does not meet the test due to the 18-year gap
between restoration and the Shriner Tract purchase, Coleman said.
While the long wait is not a complete bar, she acknowledged,
the fact that the tribe received trust land in Oklahoma in
in interim detracted from the tribe's case.

Also, Coleman said the tribe has no "historical nexus" to the land
even though tribal ancestors are buried in the cemetery. She argued
that the tribe lived in the Kansas City area for less than a decade before
being removed to Oklahoma.

Coleman's accompanying letter to Chief Bearskin gave the tribe a week
to respond to the opinion. Ellis said the agency would evaluate
its next step once the response is received.